BRITO-DELEON v. ASHCROFT

January 28, 2002

ANGEL BRITO-DELEON, PETITIONER/PLAINTIFF,V.JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES; KEVIN ROONEY, ACTING COMMISSIONER OF IMMIGRATION AND NATURALIZATION SERVICE; EDWARD MCELROY, NEW YORK DISTRICT DIRECTOR FOR IMMIGRATION AND NATURALIZATION SERVICE; AND IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENTS/DEFENDANTS.

The opinion of the court was delivered by: Preska, District Judge.

ORDER ADOPTING REPORT AND RECOMMENDATION

Petitioner filed a Petition for a Writ of Habeas Corpus on
April 4, 2001.

On November 29, 2001, the Honorable Gabriel Gorenstein, United
States Magistrate Judge, issued a Report and Recommendation (the
"Report") recommending that petitioner's petition for a writ of
habeas corpus be denied, that the accompanying request for bail
should be denied, and that the May 8, 2001 Order staying the
removal or deportation of Brito-DeLeon should be vacated. The
parties were given ten days to file written objections.

Having received no objections to Judge Gorenstein's November
29, 2001 Report and Recommendation and finding the Report to be
well-reasoned and thoroughly grounded in the law, it is hereby

Ordered that the Report is adopted in its entirety and
petitioner's petition is dismissed.

The Clerk of the Court shall mark this action closed and all
pending motions denied as moot.

SO ORDERED

REPORT AND RECOMMENDATION

Petitioner Angel Brito-DeLeon, who is in the custody of the
Immigration and Naturalization Service ("INS") and subject to a
final removal order, petitions for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241. For the following reasons, the
petition should be denied.

On July 25, 2000, the INS issued a Notice to Appear, alleging
four grounds upon which Brito-DeLeon was inadmissible to and
subject to removal from the United States under
8 U.S.C. § 1182(a): 1) as an alien who had been convicted of a controlled
substance violation; 2) as an alien who the consular or
immigration officer knows or has reason to believe is or has
been an illicit trafficker of a controlled substance; 3) as an
alien who, by fraud or willfully misrepresenting a material
fact, seeks to procure a visa, other documentation, or admission
into the United States or other benefit; and 4) as an immigrant
not in possession of a visa, reentry permit, border crossing
identification card or other valid entry document. See R.
120-23.

On August 8, 2000, a removal proceeding was held before
Immigration Judge ("IJ") Alan A. Vomacka.*fn2 R. 42-46.
Brito-DeLeon appeared without counsel, but told the IJ that an
attorney, Megaly Lucas, had agreed to represent him. R. 44.
Because Lucas was not present, the IJ adjourned the removal
proceedings for three days to permit her to appear. R. 45.

On August 11, 2000, the removal proceeding resumed. R. 47-53.
Brito-DeLeon submitted a letter dated August 9, 2000, to the IJ
from Lucas requesting an adjournment for over a month because
she was going to be out of town. R. 48-49. After suggesting that
he or his family call Lucas' office to have someone there refer
another lawyer to Brito-DeLeon, the IJ again adjourned ...

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